Withdrawing case vs China would be ‘catastrophic’—Carpio

Supreme Court Justice Antonio Carpio advised the country’s next president to push through with the territorial dispute case before the United Nations-backed Arbitration Tribunal because withdrawing it would be “catastrophic.”

In a forum on the maritime dispute on the West Philippine Sea (South China Sea) Thursday night, Carpio was asked about the willingness of 2016 presidential aspirants Jejomar Binay and Grace Poe to reopen negotiations with China.

Carpio said there is nothing wrong with “amicable settlements” while there is an ongoing case, but to withdraw it would be “catastrophic.”

“I think the case would be decided before the next president assumes office. In the event it would not be decided, and there’s a new president, the UNCLOS (United Nations Convention on the Law of the Sea) itself encourages parties to come to an amicable settlement even while the case is going on,” Carpio said in the forum attended by veteran journalists, historians, and seasoned lawyers.

“If a new president comes in and the case is still going on, there is nothing wrong with talking to China. What is wrong is if the case is withdrawn. It should not be withdrawn… If the president will withdraw the case because we’re willing to talk with China, that would be catastrophic,” he added.

Carpio also thumbed down a possible settlement to just split the West Philippine Sea into two between the Philippines and China. China is claiming almost the entire West Philippine Sea by virtue of a nine-dash line.

He said to do so would be unconstitutional and would result in the president’s impeachment.

“Why don’t we just cooperate with China? If the bully goes to your house, and say, ‘get out,’ and you have the title of your house, but because he’s a bully and you’re a small guy, will you just tell him, ‘Okay, I’ll give you one half of the house?’ The UNCLOS grants us 200 nautical miles, the same with China,” Carpio said.

Carpio was referring to UNCLOS, the primary international law which governs maritime disputes on overlapping maritime zones and grants a country 200 nautical miles of exclusive economic zone. However, UNCLOS does not govern territorial disputes, which are sovereignty or ownership issues over land territory.

“We have an agreement (under UNCLOS). China is saying we are entitled to 200 nautical miles but we’re claiming the rest of the South China Sea because of historic right. They cannot do that anymore… Fifty-fifty na lang? It would be unconstitutional.  A person who would do that would be impeached,” he added.

The Philippines elevated the case to the International Arbitration Tribunal governed by the UNCLOS. The tribunal recently ruled in favor of the Philippines because the case does not involve sovereignty or sea boundary delimitation.

READ: Philippines scores against China in UN arbitration

The Philippines claimed that it has full maritime entitlement in the West Philippine Sea, and that China’s nine-dash line is invalid under the UNCLOS because it overlaps on the country’s exclusive economic zone (EEZ) and extended continental shelf (ECS).

Of all the leading presidential aspirants, it was Vice President Jejomar Binay who has openly supported opening bilateral talks with China, even to the point of entering into a joint venture with the economic giant to explore oil and gas in the resource-rich contested waters because the country needs China’s capital.

READ: Is Binay the Manchurian Candidate?

Binay also flexed his diplomatic muscle back in 2014 when he held a back-channel meeting with top Chinese Embassy officials at a time the Philippine government bared China’s new intrusions into the West Philippine Sea.

Meanwhile, Poe has vowed to continue the arbitration case but that she is also open to diplomatic talks without being confrontational, and possibly even without the help of a key ally against China, the United States.

Mar Roxas, the administration standard bearer, is likely to continue the stance of President Benigno Aquino III to push through with the arbitration with his vow to continue the government’s reform agenda.  The Philippine government has resorted to an arbitration case against China after it said it has exhausted all diplomatic means to stave off the territorial spat between the two countries. The Philippines also chose the diplomatic channels because it is no match to China’s military might.

Meanwhile, another presidential aspirant Sen. Miriam Defensor-Santiago has sought a Senate inquiry into China’s land reclamation activities on the contested waters, and whether or not the government should take a more aggressive action to protect the Philippines’ territories. She has also said China’s nine-dash line has no legal basis.

READ: Santiago: Scare China with ‘power politics’

Carpio said he agreed that the West Philippine Sea spat would be an election issue in 2016. “We should first ask them their position because they have not stated it fully. The question in the debates of the Commission on Elections is whether you would withdraw the case if it’s still pending,” he said.

“(Echoing) Sun Tzu, it is better to defeat the enemy in the courtroom than in the battlefield. We can only defeat China in the courtroom, not in the battle field,” Carpio said.

Carpio also said the Tribunal practically ignored China’s nine-dash line in its latest ruling recognizing jurisdiction on the West Philippine Sea (South China Sea) dispute.

READ: UN tribunal ‘totally ignored’ China’s 9-dash line – Carpio

Carpio said the fact that the Tribunal chose to ignore China’s dash line—its most prominent evidence to show its historic right over the waters—gives a “peek” of its final decision on the dispute.

“The nine-dash line was totally ignored by the Tribunal… That is an indication of how they will rule. The nine-dash line will have no meaning at all,” Carpio said.

“I was just trying to give you the mind of the Tribunal. They don’t really consider dash line as material in determining the exclusive economic zone,” Carpio said.

The Philippines scored a victory at the International Arbitral Tribunal after the panel unanimously decided that it has jurisdiction over the maritime dispute between China and the Philippines involving parts of the South China Sea.

The decision means that the Tribunal, convened under the provisions of the UNCLOS will hold further hearings to settle the increasingly contentious dispute.

A nine-page press release issued by the Permanent Court of Arbitration “on behalf of the Arbitral Tribunal in the Philippines v. China arbitration” clarified that the dispute was not about sovereignty, as China has claimed.

“This arbitration concerns the role of ‘historic rights’ and the source of maritime entitlements in the South China Sea, the status of certain maritime features in the South China Sea and the maritime entitlements they are capable of generating, and the lawfulness of certain actions by China in the South China Sea that are alleged by the Philippines to violate the Convention,” it said.

The panel concluded that it had jurisdiction over the case.

“The Tribunal’s Award of today’s date is unanimous and concerns only whether the Tribunal has jurisdiction to consider the Philippines’ claims and whether such claims are admissible. The Award does not decide any aspect of the merits of the Parties’ dispute. In its Award, the Tribunal has held that both the Philippines and China are parties to the Convention and bound by its provisions on the settlement of disputes. The Tribunal has also held that China’s decision not to participate in these proceedings does not deprive the Tribunal of jurisdiction and that the Philippines’ decision to commence arbitration unilaterally was not an abuse of the Convention’s dispute settlement procedures,” the panel said.

The tribunal expects to “render its Award on the merits and remaining jurisdictional issues in 2016.”

China has maintained that it would not follow the tribunal’s orders in relation to the case, and that the ruling was null and void because it does not bind China.

READ: UN Tribunal ruling ‘null, void, nonbinding’—China

But Carpio said he thinks China would eventually follow because it would be more advantageous for it to comply with the tribunal.

“Over 95 percent of decisions of the tribunal were complied with in the end. It took some time. When the cost of noncompliance far exceeds the cost of compliance, the state will comply,” Carpio said.

Carpio said it is more advantageous for China to comply because even an economic giant like China needs to preserve its ties with other countries in the Asean region and even “the rest of the world.”

“In the end, China will comply, I think, because it’s his advantage to comply. It would take time once we win, do not expect instant gratification. We’ll have another struggle to convince the world to support us,” Carpio said.

Amid the maritime and territorial spat, China has conducted massive land reclamation activities turning submerged reefs into artificial islands capable of hosting military equipment and structures. IDL

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Originally posted at 8:51 p.m. on November 5, 2015.